Citation Nr: 21009436 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-34 664 DATE: February 22, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a stomach disorder is reopened. Entitlement to service connection for hypertension is denied. Entitlement to service connection for nonalcoholic steatohepatitis is denied. Effective January 1, 2018, entitlement to a rating of total disability based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a lumbar spine condition is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a stomach condition is remanded. FINDINGS OF FACT 1. In an April 2000 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran’s claim of entitlement to service connection for a stomach condition. The Veteran did not file a notice of disagreement with the decision or submit new and material evidence within one year of the denial. 2. Evidence received since the final April 2000 rating decision is neither cumulative nor redundant and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a stomach condition. 3. The preponderance of the evidence is against a finding that the Veteran’s hypertension was caused by or incurred in service. 4. The preponderance of the evidence is against a finding that a liver condition, to include nonalcoholic steatohepatitis, was caused by or incurred in service. 5. Resolving all reasonable doubt in the Veteran’s favor, the evidence demonstrates that the Veteran has been unable to secure or maintain substantially gainful employment due to service-connected disabilities as of January 1, 2018. CONCLUSIONS OF LAW 1. The April 2000 rating decision that denied the claim of entitlement to service connection for a stomach condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103 (2019). 2. The criteria for reopening a previously denied claim of entitlement to service connection for aa stomach condition have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.310 (2019). 4. The criteria for entitlement to service connection for nonalcoholic steatohepatitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.310 (2019). 5. From January 1, 2018, but no earlier, the criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1991 to June 1995. This case comes on appeal of December 2012 and February 2018 rating decisions. By way of background, the issue of entitlement to TDIU was previously before the Board in April 2019, at which time the Board remanded the claim for further development. In the same decision, the Board also remanded the issue of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). Subsequent to the Board’s remand, in February 2020, the AOJ granted entitlement to service connection for PTSD, effective the date of the Veteran’s claim. Thus, that issue is considered granted in full and is no longer before the Board. The remaining issues below are before the Board for the first time. Request to Reopen the Claim for Service Connection of a Stomach Condition If a claim of entitlement to service connection has previously been denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence VA is required to review for newness and materiality is that which has been submitted by the claimant since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Shade, 24 Vet. App. at 118. The Veteran first filed a claim of entitlement to service connection for a stomach condition in February 2000. The AOJ denied the claim in an April 2000 rating decision and the Veteran did not submit a notice of disagreement or new and material evidence within one year of the decision; therefore the decision became final. This represents the most recent final denial; accordingly the Board must consider whether the Veteran has provided new and material evidence since that decision. The Board notes that in its February 2018 rating decision, the AOJ reopened the claim of entitlement to service connection for a stomach condition and adjudicated it on the merits. Irrespective of whether a claim that was denied and became final has since been adjudicated on the merits by the AOJ, the Board must make its own determination as to whether new and material evidence has been received to reopen the issue. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Since the most recent final denial, the Veteran has submitted numerous medical records, to include those documenting recurring symptoms of abdominal pain. This evidence was not before VA at the time of the most recent final denial and relates to an unestablished fact necessary to substantiate the claim. Without yet addressing the probative value of this additional evidence, the Board acknowledges that the evidence satisfies the low threshold of new and material evidence required to reopen the claim. To this extent only, the appeal is granted. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for hypertension The Veteran’s post-service treatment records document an ongoing diagnosis of hypertension for which the Veteran receives medication. Therefore, the Veteran has demonstrated a current disability and has satisfied the first element of service connection. At issue is whether hypertension was caused by or incurred in service. Service treatment records do not demonstrate any diagnosis or problem related to hypertension. Indeed, the Veteran was provided a physical examination in November 1995 to determine his fitness for reenlistment. At that time, his blood pressure measured 105/58. Post-service treatment records show that the Veteran continued to have normal blood pressure readings for several years after service. The first indication of hypertension in the record is an April 2012 VA treatment note recommending medication. To date, there is no evidence of record relating hypertension to service. Moreover, the Veteran himself has not presented any theory as to why hypertension should be service connected. Thus, the preponderance of the evidence is against a finding that hypertension was caused by or incurred in service. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges that the Veteran has not been afforded a VA examination regarding this claim. However, in the absence of any evidence suggesting that hypertension may be related to service, the low threshold for VA’s duty to assist by providing an examination has not been triggered. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for nonalcoholic steatohepatitis The Veteran filed the present claim for service connection for steatohepatitis. An August 2015 abdominal ultrasound report showed an impression of hepatomegaly with severe fatty liver infiltration. A more recent abdominal ultrasound in February 2020 showed moderate hepatomegaly and the report stated that steatohepatitis should be considered. Thus, it is not entirely clear from the record whether the Veteran has a current diagnosis of steatohepatitis or any other specific liver condition. Irrespective of current diagnosis, the claim for service connection fails as there is no indication that any liver condition is causally related to service. Indeed, the Veteran’s service treatment records do not identify any liver condition. The first indication of such condition is the August 2015 ultrasound. Therefore, there is no evidence of an in-service onset. Moreover, the Veteran has not identified any in-service event or injury to explain why he believes a liver condition is causally related to service. Thus, even conceding a current condition, the preponderance of the evidence is against a finding that such was caused by or incurred in service. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As with hypertension, the Board acknowledges that the Veteran has not been afforded a VA examination regarding this claim. However, in the absence of any evidence suggesting that a liver condition may be related to service, the low threshold for VA’s duty to assist by providing an examination has not been triggered. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). TDIU Entitlement to a rating of total disability based on individual unemployability (TDIU) In an October 2016 brief, the Veteran’s representative raised the issue of entitlement to a TDIU as part and parcel of the Veteran’s appeal for an increased rating for migraine headaches. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the Veteran’s TDIU claim effectively stems from a March 21, 2012 claim. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. The economic component requires a determination as to whether a Veteran’s income exceeds the poverty threshold. The noneconomic component requires a determination as to a Veteran’s ability to secure and follow such employment. With regard to the latter component, attention should be given to the Veteran’s history, education, skill, and training. Consideration should also be given to both the Veteran’s physical and mental abilities. From a physical standpoint, possible relevant factors include the Veteran’s limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Regarding the Veteran’s mental ability, possible relevant factors include limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In determining whether unemployability exists, consideration should not be given to the Veteran’s age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his service-connected disabilities, but the functional impairment caused solely by his service-connected disabilities. From March 21, 2012 to January 23, 2013, the Veteran was service connected for headaches at a rating of 50 percent and essential tremors of both hands at a rating of 10 percent, for a combined rating of 60 percent. From January 23, 2013 forward, the Veteran has been service connected for PTSD at a rating of 70 percent, headaches at a rating of 50 percent, and essential tremors of both hands at a rating of 10 percent. This combines for a 90 percent rating from that date. Thus, for the period from the filing of the TDIU claim on March 21, 2012 to January 23, 2013, the Veteran is not schedularly eligible for a TDIU. From January 23, 2013 forward, the Veteran is schedularly eligible for a TDIU. Accordingly, from January 23, 2013 forward, the Board must evaluate whether entitlement to a TDIU is warranted. From March 21, 2012 to January 23, 2013, the Board may not evaluate TDIU in the first instance, but must evaluate whether referral for consideration of extraschedular TDIU is warranted. The Board notes that there has been considerable uncertainty regarding the Veteran’s employment situation as presented in the record. The Veteran’s statements in the course of treatment regarding employment dates have differed somewhat from the information he has provided in a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). On a Form 21-8940 submitted in March 2019, the Veteran indicated that he had worked for Immigration Customs Enforcement until January 2015. He also reported that he had worked for multiple institutions of higher learning—one until January 2017, and two for which he was still working at that time. The Veteran reported, without explanation, that those positions represented sheltered employment. However, he also reported that he had earned $20,000 in the previous 12 months, an income that would exceed the poverty threshold. As a result, in its April 2019 remand, the Board requested clarification about the nature of the Veteran’s employment, as well as any supporting documentation that might demonstrate whether he met the economic component of TDIU. In June 2019, the Veteran submitted an additional Form 21-8940, although this form did not provide any additional information regarding the alleged sheltered nature of the Veteran’s employment. However, the Veteran additionally submitted a work history form and a copy of his Social Security Administration earnings record from the date of the claim through January 2019. That record demonstrated that the Veteran had earnings above the poverty level through 2017. In calendar year 2018, the Veteran’s earnings were $4,435, i.e., below the poverty line. The record was then muddled somewhat further by a concurrent March 2019 claim for Vocational Rehabilitation and Education benefits. In submitting that claim, the Veteran alleged that his continued employment as a professor required him to obtain a doctoral degree. In a May 2019 Counseling Record Narrative Report, the vocational counselor reported that the Veteran’s current salary was $1500 per month. Nevertheless, the Veteran has described his teaching positions as contract positions which are part-time, temporary, and not guaranteed. He has further identified that he is able to teach online from home in those positions, and has had some of his positions terminated or not renewed due to the fact that he had to cancel classes for medical appointments. Moreover, the Veteran has identified that he is not seeking, nor is he capable of performing, a full-time position. The Board has weighed the evidence of record regarding the Veteran’s employment and income. In light of the Veteran’s descriptions of the transient and non-guaranteed nature of his teaching positions as well as the documented evidence that the Veteran earned only $4.435 in 2018, the Board resolves all reasonable doubt in the Veteran’s favor. To the extent that he has been employed as a professor, from January 2018 forward, that employment has been marginal. Thus, from January 2018, the Board considers the Veteran to have met the economic component of being unable to secure and follow a substantially gainful occupation. Given the Veteran’s income from 2012 through 2017, the Board finds that the Veteran does not meet the economic component of being unable to secure and follow a substantially gainful occupation during those years. Accordingly, extraschedular TDIU is not warranted from March 21, 2012 to January 23, 2013. Schedular TDIU is not warranted from January 23, 2013 to January 1, 2018. Since the Board considers the Veteran to have met the economic component for TDIU as of January 1, 2018, the remaining question is whether the Veteran meets the noneconomic component of TDIU. That is, from that date forward, do the Veteran’s service-connected disabilities preclude him from securing or following a gainful occupation. Again, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s combined service-connected disabilities render him unable to secure or follow substantially gainful employment as of January 2018. Throughout the period on appeal, the Veteran has complained of migraine headaches that occur, on average, every other day. Those headaches have been accompanied by nausea, vomiting, and photophobia. In an August 2020 functional capacity assessment, a VA examiner opined that the Veteran would more likely than not be able to function in a sedentary environment. The examiner conceded, however, that the Veteran’s headaches would interfere with executive function and concentration. The Veteran would almost certainly require breaks, early dismissal, or tardiness exceptions, and the condition would preclude functioning in a daily, structured work environment. In a June 2019 mental disorders examination, the examiner noted that the Veteran’s PTSD manifested in occupational and social impairment with deficiencies in most areas. At that time, the Veteran noted that he was enrolled as a full-time student, studying psychology, but stated that he received accommodations due to his mental and physical health, noting that he was extremely slow in his work. During the examination, the Veteran reported experiencing hypervigilance in public and avoiding crowds. He stated that he felt no one could be trusted and that he had a history of verbal outbursts due to his irritability around others. The examiner reported that the Veteran’s mental health symptoms included: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and, difficulty adapting to stressful circumstances, including work or a work-like setting. The Veteran also reported difficulty concentrating, panic attacks four times per week, and a lack of motivation to engage in self-care activities such as bathing. The examiner observed that the Veteran appeared frustrated when discussing his mental health concerns and how they affected his functioning. Moreover, the examiner reported that the Veteran exhibited bald patches on his head, which the Veteran stated he often picked at due to difficulty managing his anxiety. The Veteran also bit his nails throughout the evaluation. Previous records indicate that the Veteran has exhibited behavior such as rocking back and forth and chewing on his shirts due to his anxiety. In addition to the symptoms of headaches and PTSD, the record indicates that the Veteran experiences physical difficulties due to his bilateral hand tremors. These difficulties include problems with writing and typing. Thus, as acknowledged in the functional capacity assessment, the Veteran’s migraine headaches provide significant occupational limitations resulting in the need for a flexible work environment. Although that disability may not, on its own, result in total occupational impairment, the Veteran’s PTSD manifests in symptoms that would further limit the Veteran’s abilities to maintain gainful employment. Specifically, the Veteran’s difficulty responding to stressful situations, establishing professional relationships, and maintaining motivation for activities such as basic hygiene would almost certainly hamper the ability to work effectively with supervisors to establish a flexible work environment as needed. Furthermore, the physical limitations caused by the Veteran’s tremors would likely preclude even sedentary employment, where the ability to reliably write and type would be absolutely necessary. Accordingly, the Board finds that, as of January 2018, the Veteran’s service-connected disabilities, in combination, prevent the Veteran from securing or following substantially gainful employment. Effective January 1, 2018, entitlement to a TDIU, on a schedular basis, is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine condition is remanded. Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the Veteran has claimed entitlement to service connection for a lumbar spine disability. Service treatment records demonstrate that the Veteran was treated for a lumbar condition in June 1994. The treating provider described a curve in the Veteran’s backbone and noted that the Veteran did have some mild kyphosis, but also weakness in upper body strength. The Veteran was given a physical profile for performing pushups. The Veteran underwent a VA examination in December 2017. At that time, the examiner reported a diagnosis of lumbosacral strain. The examiner stated that during his entrance examination, the Veteran was noted to have kyphosis of the back and that this was noted as a preexisting condition prior to entering service. The Veteran had reported that the condition had progressed since onset with current symptoms of pain and stiffness. The examiner then opined that the kyphosis predated military service and that military service could aggravate the condition but was not the cause of it. The examiner went on to state that the Veteran had been diagnosed with lumbosacral strain, however, a CT scan dated June 2017 showed no issues with the Veteran’s back. In January 2018, the examiner was requested to provide an addendum opinion. Specifically, the AOJ noted that there was no medical evidence to document that kyphosis predated service, as the condition had not been noted on the Veteran’s enlistment examination, rather, it first appeared in the June 1994 treatment note. Based on that evidence, the examiner was asked whether it was at least as likely as not that the Veteran’s current back condition was caused by or incurred in service. In response, the examiner stated that the Veteran had no evidence of a congenital problem, as x-rays before entering the military were normal. The examiner then explained that kyphosis can develop with severe muscle spasms that have a tendency to angulate the spine to give the impression of kyphosis. The examiner hypothesized that, because the radiologist in June 1994 probably had no comparison films, the radiologist made a reading based only on current findings which showed mild kyphosis. Since the latest x-rays showed no evidence of kyphosis, the examiner expressed their opinion that the in-service finding of kyphosis was a temporary problem “most likely related to muscle spasm or strain from the possible injury sustained in military service.” The examiner then concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Here, the examiner has not provided sufficient medical rationale for the conclusion. Indeed, it is not entirely clear that the examiner had a full understanding of the Veteran’s claim. Moreover, VA treatment records show intermittent complaints of low back pain and private treatment records demonstrate that a January 2018 lumbar spine x-ray showed early mild arthritis. In statements, the Veteran has alleged that his current back pain is causally related to the symptoms he experienced in service, which were themselves caused by the nature of his service. Thus, on remand, a new examination is necessary to discuss the etiology of any current low back disability. The examiner should address whether the Veteran’s current disability was caused by or incurred in service, to include the June 1994 finding of kyphosis and any injury that may have resulted in an incorrect finding of kyphosis. 2. Entitlement to service connection for sleep apnea is remanded. In support of the Veteran’s claim for service connection for sleep apnea, the Veteran’s representative submitted a medical treatise regarding the comorbid relationship between sleep apnea and mental health conditions, to include PTSD. The Veteran’s representative also submitted a brief alleging that this demonstrates that the Veteran’s sleep apnea was caused or aggravated by PTSD. The Board first notes that the medical treatise in question does not conclude that PTSD causes or aggravates PTSD. Indeed, the treatise explicitly states that causality cannot be discerned from the data available. Moreover, the suggestion of the research presented in the treatise speaks to a relationship in which sleep apnea causes or aggravates PTSD, not the other way around. The treatise notes that treatment of sleep apnea with continuous positive airway pressure (CPAP) therapy was found to reduce depressive symptoms and that psychiatric conditions are more prevalent in patients with sleep apnea. Furthermore, to the extent that the Veteran’s representative has attempted to draw additional causal links based on this medical treatise, the Board notes that there is no evidence the Veteran’s representative has any medical expertise that would make him competent to do so. Therefore, this argument is not persuasive. Nevertheless, the Board notes that the Veteran has not undergone a VA examination regarding sleep apnea. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has a diagnosed disability and has provided medical treatise evidence that speaks to some possibility of relationship between that disability and service. This evidence meets the low threshold required to trigger VA’s duty to assist by providing an examination. Thus, on remand, the Veteran should be afforded such examination. 3. Entitlement to service connection for a stomach condition is remanded. The Veteran underwent a VA examination for stomach conditions in December 2017. The examiner reported that there was no diagnosed stomach or duodenal condition. The examiner acknowledged that the Veteran reported having abdominal pain that occurred at least monthly, and that pain was documented in his records. However, there was no long-term program of pain management or medical investigation noted. Therefore, the examiner found no basis for a diagnosis. The Board notes that, on the Veteran’s August 1990 report of medical history upon enlistment, the Veteran was noted to have a history of mesenteric adenitis, but he had denied residuals. Enlistment records show that, in May 1990, the Veteran was hospitalized for this condition. At the time, it involved pain mostly localized on the right side of the abdomen. Those records also noted that the Veteran had experienced a similar episode about 15 months prior. Treatment records show that, in March 1994, the Veteran reported to sick call with abdominal cramps that ultimately lasted about three days. In May 1995, the Veteran once again complained of a five-day history of brief, but intense, episodes of right-sided abdominal pain. Throughout the Veteran’s post-service treatment records, the Veteran has consistently complained of episodic right-sided abdominal pain. In light of the consistent nature of these symptoms, an examination and opinion are necessary to address whether they represent the same condition that the Veteran experienced during service. An opinion is also necessary to address whether these symptoms represent the same condition that was identified on the Veteran’s enlistment examination and, if so, whether there is evidence that the condition was aggravated beyond its natural progression during service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination of the thoracolumbar spine. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the low back, to include arthritis as identified in January 2018 x-rays. The examiner should also note that pain alone, even in the absence of a diagnosis, is considered a disability when resulting in functional loss. Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. In doing so, the examiner should specifically address the June 1994 back condition that was identified at the time as kyphosis, but which the December 2017 VA examiner determined was more likely due to muscle spasm and possible injury. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 2. Schedule the Veteran for a VA sleep apnea examination. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. Regarding the Veteran’s diagnosed sleep apnea, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by a service-connected disability, to include PTSD. In doing so, the examiner should specifically address the medical treatise evidence submitted by the Veteran and his attorney. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 3. Schedule the Veteran for a VA examination of stomach conditions. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current stomach conditions. In doing so, the examiner should specifically address the Veteran’s history of episodic right-sided abdominal pain. In particular, if and only if the Veteran’s current stomach disability includes a diagnosis of mesenteric adenitis, the examiner should answer the following questions: a) Is it clear and unmistakable (i.e. undebatable) that the Veteran’s mesenteric adenitis disability had pre-existed his entry into active duty military service? b) If the answer to (a) above is “Yes,” is it also clear and unmistakable (i.e. undebatable) that the pre-existing disability was NOT aggravated beyond its natural progression during the Veteran’s period of active duty service? c) If the answer to either (a) or (b) is “No,” then assume as true that the Veteran entered active duty without a preexisting mesenteric adenitis disability. With that in mind, is it at least as likely as not (50 percent or greater probability) that such disability had onset in, or is otherwise related to service? For all other identified stomach disabilities, please indicate whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service, to include the episodic abdominal pain the Veteran experienced in service. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 4. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.